1976). In this case, however, Defendant Haddam conducted numerous other activities in the District of Columbia that were unrelated to the solicitation of funds from the United States government. Accordingly, personal jurisdiction over Defendant Haddam lies in the District of Columbia.
Defendant Haddam claims that although he was personally served with the summons and complaint, service was nevertheless improper because he was an "excludable alien" under 8 U.S.C. § 1182(a)(7)(A)(I)(I) (1970 & Supp. 1977).
The Court finds that the Defendant was properly served. Fed. R. Civ. P. 4(e)(2) authorizes personal service of a summons and complaint upon an individual physically present within any judicial district of the United States. It is not limited to the district in which the complaint was filed. Defendant Haddam was personally served in Virginia and does not deny such service. Defendant fails to cite any case law in support of his contention that his status as an "excludable alien" would prevent service. In essence, Defendant is asking the Court to create a new form of immunity, preventing excludable aliens from being sued in this country. The Court declines to do so.
C. Subject Matter Jurisdiction
Plaintiffs seek subject matter jurisdiction of this Court pursuant to the ACTA, the TVPA, and under general federal question jurisdiction, 28 U.S.C. § 1331 (1997).
1. Jurisdiction Under the ATCA
The ATCA was enacted as part of the Judiciary Act of 1789. It provides: "The district court shall have original jurisdiction of any civil [tort] action by an alien . . . committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. § 1350 (1988). Recently, Congress reaffirmed that the ATCA is an authorization of United States courts to serve as forums to redress violations of international law. In the legislative history of the TVPA, enacted into law in 1992, Congress stated that the ATCA "should remain intact to permit suits based on other norms that already exist or may ripen in the future into rules of customary international law."). H.R. Rep. No. 102-367, at 3-4 (1991) reprinted in 4 U.S.C.C.A.N. 86 (1992).
Three conditions must be met in order for there to be subject matter jurisdiction under the ATCA: (1) the Plaintiff must be an alien; (2) the cause of action must be for a tort; and (3) the tort must be committed in violation of the law of nations or treaty of the United States. See Kadic v. Karadzic, 70 F.3d 232, 238 (2d Cir. 1995).
Defendant Haddam claims that the third condition is not satisfied in this case. He argues that according to international law, a violation of the law of nations must be an act under actual or apparent authority, or color of law, of a foreign state. In other words, Defendant claims that the ATCA, although not explicitly requiring state action, does so because the law of nations has such a requirement.
The law of nations, currently known as international customary law, is formed by the "general assent of civilized nations." Filartiga v. Pena-Irala, 630 F.2d 876, 880 (2d Cir. 1980). Recently, the Second Circuit, in Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995) rejected an argument similar to Defendant Haddam's. There, the defendant claimed, similar to Defendant Haddam, that he was a private actor rather than a state actor and that international law only applies to state action. The Second Circuit disagreed with the defendant's claims. "We do not agree that the law of nations, as understood in the modern era, confines its reach to state action. Instead, we hold that certain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals." Karadzic, 70 F.3d at 239. The court cited examples of action by private individuals and entities that would violate international law: piracy, slave trade, war crimes, and aircraft hijacking. See id. at 239-40. The court made it clear that these were not the exclusive exceptions to state action; in fact, the court declared that "offenses of 'universal concern'" were capable of being committed by private actors. Id. at 240. The court concluded that
Appellants' allegations that Karadzic personally planned and ordered a campaign of murder, rape, forced impregnation, and other forms of torture designed to destroy the religious and ethnic groups of Bosnian Muslims and Bosnian Croats clearly state a violation of the international law norm proscribing genocide, regardless of whether Karadzic acted under color of law or as a private individual. Id. at 242.
In 1984, this Circuit had occasion to address the issue, but it did not reach a consensus. In Tel-Oren v. Libyan Arab Republic, 233 U.S. App. D.C. 384, 726 F.2d 774 (D.C. Cir. 1984), the Circuit held that Israeli citizens lacked subject matter jurisdiction under the ATCA. However, the panel issued a fragmented decision, with each judge affirming the result for different reasons. Judge Edwards held that although there were instances where private actors could be liable under international law, the law of nations as it stood in 1984 required state action for acts of torture. See 726 F.2d at 795. Further, he concluded that terrorism was not outlawed by international law. See id. at 796. Judge Bork held that the ATCA was merely a grant of jurisdiction and did not create a cause of action. Id. at 800. Judge Robb held that the action should be dismissed on grounds of justiciability. Id. at 822.
The opinions in Tel-Oren did not hold that international law requires state action. Judge Edwards stated that slave trading, piracy, and "a handful of other private acts" constitute violations of international law by private actors. 726 F.2d at 794 (Edwards J. concurring). Judge Bork also noted that international law prohibited private acts such as piracy and interference with ambassadors. 726 F.2d at 813-15.
The decision in Karadzic came after this Circuit's opinions in Tel-Oren. It clearly dealt with the issue. Because of the clarity of the Second Circuit's decision and because the facts there are similar to those in the instant case, this Court finds that it is the appropriate precedent to apply in this case. The Karadzic court's analysis is directly on point and addresses the issues in this case more pointedly than the three conflicting opinions in Tel-Oren. The interpretation of international law in Karadzic in 1995 is far more timely than the interpretations set forth in Tel-Oren, which examined international law as it stood almost fifteen years ago. Courts must interpret international law under the ATCA as "it has evolved and exists among the nations of the world today." Karadzic, 70 F.3d at 238; see also Tel-Oren, 726 F.2d at 777 ("The 'law of nations' is not stagnant and should be construed as it exists today among the nations of the world.") (Edwards, J. concurring); Filartiga v. Pena-Irala, 630 F.2d 876, 881 (2d Cir. 1980) ("Thus it is clear that courts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today.") (citing Ware v. Hylton, 3 U.S. (3 Dall.) 199, 1 L. Ed. 568 (1796)).
In this case, the alleged acts of the FIS are clearly in violation of international law as it stands today.
Common Article 3 of the Geneva Conventions, which has been ratified by over 180 states, applies to "an armed conflict not of an international character" and protects civilians not participating in the conflict by requiring that they be "treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria." It prohibits, among other things, "murder of all kinds, mutilation, cruel treatment and torture," kidnapping, and summary executions. Geneva Convention I art. 3(1). The Karadzic court held that Common Article 3 applies to all parties to a conflict, not merely to official governments. Karadzic, 70 F.3d at 243. This Court concludes that the acts of the FIS alleged by Plaintiffs are proscribed by international law against both state and private actors, as evidenced by Common Article 3. Accordingly, Plaintiffs have properly alleged subject matter jurisdiction under the ATCA.
2. Jurisdiction Under the TVPA
The TVPA was signed into law in March 1992. It provides for a federal cause of action for torture and execution committed anywhere in the world. The central elements of a TVPA claim are set forth in the statute:
An individual who, under actual or apparent authority, or under color of law, of any foreign nation --
(1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or